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Infringing internet by surfing

Published by Steinar Kvam .

Infringing internet by surfing
By: Steinar Kvam

Is it possible to get accused on infringing internet content? For commercial companies or private persons? This summer the court of Justice in the European Union, the CJEU, decided in the so called Meltwater case. The CJEU held, luckily, that on-screen and cached copies of websites generated by end-users in the course of browsing may be made without the authorisation of copyright holders. For most of us this is obvious. Free internet bsurfing, my goodness – is taken for granted! However, it is really not that obvious.

The CJEU decision in the Meltwater case means that the internet is saved and that browsing does not require a licence. The case was that Meltwater provided an online media monitoring service called Meltwater News. Subscribers to the service were sent emails containing the headlines of online articles, hyperlinks to the articles' publishers' websites and short extracts of the articles themselves. The NLA, which is The Newspaper Licensing Agency, brought proceedings for copyright infringement against Meltwater and Public Relations Consultants Association (PRCA) who represented customers of Meltwater News. The NLA claimed that the end-users of the service required a licence using the end news, through ordinary use of the service, on-screen and cached copies of works in which copyright subsisted would be made on the end-users' computers when they accessed and browsed newspaper websites. The law in the case were discussed around Article 5(1) of the Copyright Directive 2001/29/EC provides an exemption to the reproduction right for acts of reproduction that meet the relevant criteria.  The criteria are that an act of reproduction should be temporary, in that it is transient or incidental, is an integral part and essential part of a technological process, its sole purpose is to enable a transmission or lawful use of a work to be made and it has no independent economic significance. To solve this matter the CJEU considered the 3 main conditions in the Article 5 (1):

Condition 1- Are the copies temporary?

The CJEU made it quit clear that the copies were temporary, as the on-screen copies were deleted when the internet user moves away from the page, and the cached copies were replaced by other content after a certain time.

Condition 2 – Are the copies transient or incidental?

In the context of article 5.1, transient means limited to what is necessary for the technological process to work properly, providing that the copy is deleted automatically once its function has been completed. The CJEU rejected the NLA's argument that the copies were not transient because they depended on human intervention to navigate away from the page.  The on-screen copies were also incidental, regardless of the fact that copies on screen were displayed as long as the browser window was kept open.  The cached copies were incidental to the technological process, as they could not be created outside the process of browsing.  Having found the cached copies were incidental, the court did not need to find that they were transient as well.

Condition 3 – Are the acts of reproduction an integral and essential part of a technological process?

According to the Herbert Smith Freehills IP bulleting in July «The CJEU said that that fall under the condition, both parts must apply.  The first part of the condition required that the acts of reproduction should be carried out entirely in the context of the implementation of a technological process. This was satisfied as the creation and deletion of both the on screen and cached copies took place in the technological process for viewing websites. The second part of the condition required that the completion of the acts of reproduction was necessary such that the technological process wouldn’t function without it.  The CJEU addressed the issue of whether a cache was necessary for the purposes of browsing the internet.  It concluded that as the internet would not function effectively with large volumes of data without caching, this meant caching was necessary.”

The verdict from the CJEU means that users of the internet will not infringe copyright through surfing websites. The decision applies only to browsing.  It does not make it legal to print out or downloading the content of websites without the permission of copyright owners.


Knut J. Egelie